Implicit Bias in the Courtroom

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Download paper for free.

Related Situationist posts:

• Implicit Bias Symposium (with links to videos)
• The Situation of ‘Common Sense’
• Pushback from the Left
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Litigators
• Tierney’s Skepticism at the New York Times
• Measuring Implicit Attitudes
• What Are the Legal Implications of Implicit Biases?
• Confronting the Backlash against Implicit Bias
• Legal Academic Backlash – Abstract
• Naïve Cynicism in Election 2008: Dispositionism v. Situationism?
• Implicit Bias and Strawmen
• The Situation of Situation in Employment Discrimination Law – Abstract.”

Policy Implications of Implicit Social Cognition

Situationist Contributor Brian Nosek and Rachel Riskind recently posted their paper, “Policy Implications of Implicit Social Cognition” on SSRN.  Here is the abstract.

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Basic research in implicit social cognition demonstrates that thoughts and feelings outside of conscious awareness or conscious control can influence perception, judgment and action. Implicit measures reveal that people possess implicit attitudes and stereotypes about social groups that are often distinct from their explicitly endorsed beliefs and values. The evidence that behavior can be influenced by implicit social cognition contrasts with social policies that implicitly or explicitly assume that people know and control the causes of their behavior. We consider the present state of evidence for implicit social cognition and its implications for social policy. We conclude that considering implicit social cognition can contribute usefully to policy, but that most uses of implicit measures themselves as selection or evaluation devices is not easily justified.

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Download the paper for free here.

Related Situationist posts:

• The Situation of ‘Common Sense’
• “Measuring Implicit Attitudes,”
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “Legal Academic Backlash – Abstract,”
• “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,” and
• “Implicit Bias and Strawmen,”

For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Pushback from the Left

Situationist Contributor Jerry Kang recently posted his thoughtful essay, “Implicit Bias and the Pushback from the Left” (St. Louis University Law Journal, Vol. 54, p. 1139, 2010) on SSRN.  Here’s the abstrct.

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Over the past three decades, the mind sciences have provided remarkable insights about how our brains process social categories. For example, scientists have discovered that implicit biases – in the form of stereotypes and attitudes that we are unaware of, do not consciously intend, and might reject upon conscious self-reflection – exist and have wide-ranging behavioral consequences. Such findings destabilize our self-serving self-conceptions as bias-free. Not surprisingly, there has been backlash from the political Right. This Article examines some aspects of the more surprising pushback from the Left.

Part I briefly explains how new findings in the mind sciences, especially Implicit Social Cognition, are incorporated into the law, legal scholarship, and legal institutions, under the banner of “behavioral realism.” Part II describes the pushback from the Left. Part III responds by suggesting that our deepest understanding of social hierarchy and discrimination requires analysis at multiple layers of knowledge. Instead of trading off knowledge, for example, at the cognitive layer for the sociological layer (or vice versa), we should seek understanding at each layer, and then interpenetrate the entire stack.

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Download the essay for free here.  For a sample of related Situationist posts, see

Race and Implicit American-ness

In case you missed it, here is a worthwhile CNN International interview of Thierry Devos and Debbie Ma about their study, titled “Is Barack Obama American Enough to Be the Next President?: The Role of Ethnicity and National Identity in American Politics” (pdf  here).  The study’s introduction is as follows.

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Recent research has demonstrated a tenacious propensity to more readily ascribe the American identity to Whites than to ethnic minorities . . . . Interest in this American = White effect is timely given that a front runner in the 2008 presidential election is African American. The aim of the present research was to determine the role of ethnicity and national identity in the perception of political candidates, as well as identify correlates (behavioral, attitudinal, individual differences) of the American = White effect.

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Roughly, the study found, among other things, that a black candidate may be implicitly conceived of as less American than a white candidate and that the more American a candidate is construed as being the more support that candidate receives.   Here’s the video.

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To read a sample of related Situationist posts, see “Racial Attitudes in the Presidential Race,” “The Situation of Being ‘(un)American’,” “The Racial Situation of Voting,” “Why Race May Influence Us Even When We “Know” It Doesn’t,”“On Being a Mindful Voter,” “Your Brain on Politics,” “Implicit Associations in the 2008 Presidential Election,” “The Situation of Political Animals,” “Political Psychology in 2008,” “Perceptions of Racial Divide,The Psychology of Barack Obama as the Antichrist,” and “The Interior Situation of Undecided Voters.”

Take our Policy IAT here.

Implicit Associations on Oprah

Oprah, Malcolm Gladwell, and Dr. Anthony Greenwald discuss the race-based Implicit Association Test and why some people show an unconscious bias in favor of White people over Black people.

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For a sample of related Situationist posts, see “Measuring Implicit Attitudes,” “What Are the Legal Implications of Implicit Biases?,” “Confronting the Backlash against Implicit Bias,” “Do You Implicitly Prefer Markets or Regulation?,” “Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,”  “Implicit Bias and Strawmen.”and “The Situation of Situation in Employment Discrimination Law – Abstract.”

To take the Policy IAT, click here.  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Measuring Implicit Attitudes

From University of Washington News

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Study supports validity of test that indicates widespread unconscious bias

In the decade since the Implicit Association Test was introduced, its most surprising and controversial finding is its indication that about 70 percent of those who took a version of the test that measures racial attitudes have an unconscious, or implicit, preference for white people compared to blacks. This contrasts with figures generally under 20 percent for self report, or survey, measures of race bias.

A new study (pdf here) validates those findings, showing that the Implicit Association Test, a psychological tool, has validity in predicting behavior and, in particular, that it has significantly greater validity than self-reports in the socially sensitive topics of race, gender, ethnicity, sexual orientation and age.

The research, published in the Journal of Personality and Social Psychology, is an overview and analysis of 122 published and unpublished reports of 184 different research studies. In this analysis, 85 percent of the studies also included self-reporting measures of the type generally used in surveys. This allowed the researchers, headed by University of Washington psychology Professor Anthony Greenwald, to compare the test’s success in predicting social behavior and judgment with the success of self-reports.

“In socially sensitive areas, especially black-white interracial behavior, the test had significantly greater predictive value than self-reports. This finding establishes the Implicit Association Test’s value in research to understand the roots of race and other discrimination,” said Greenwald. “What was especially surprising was how ineffective standard self-report measurers were in the areas in which the test measures have been of greatest interest – predicting interracial behavior.”

Greenwald created the Implicit Association Test in 1998 and he and [Situationist Contributor] Mahzarin Banaji, a Harvard psychology professor, and [Situationist Contributor] Brian Nosek, a University of Virginia associate professor of psychology, further developed it. Since then the test has been used in more than 1,000 research studies around the world. More than 10 million versions of the test have been completed at an Internet site where they are available as a self-administer demonstration.

The research looked at studies covering nine different areas – consumer preference, black-white interracial behavior, personality differences, clinical phenomena, alcohol and drug use, non-racial intergroup behavior, gender and sexual orientation, close relationships and political preferences.

Findings also showed that:

• Across all nine of these areas, measures of the test were useful in predicting social behavior.
• Both the test, which is implicit, and self-reports, which are explicit, had predictive validity independent of each other. This suggests the desirability of using both types of measure in surveys and applied research studies.
• In consumer and political preferences both measures effectively predicted behavior, but self-reports had significantly greater predictive validity.

Studies in the research came from a number of countries including Germany, the Netherlands, Italy, the United Kingdom, Australia, Canada, Poland and the United States. They looked at such topics as attitudes of undecided voters one-month prior to an Italian election; treatment recommendations by physicians for black and white heart attack victims; and reactions to spiders before and after treatment for arachnophobia, or spider phobia.

“The Implicit Association Test is controversial because many people believe that racial bias is largely a thing of the past. The test’s finding of a widespread, automatic form of race preference violates people’s image of tolerance and is hard for them to accept. When you are unaware of attitudes or stereotypes, they can unintentionally affect your behavior. Awareness can help to overcome this unwanted influence,” said Greenwald.

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To visit the Project Implicit website and find out more about implicit associations, click here.

For a sample of related Situationist posts, see “What Are the Legal Implications of Implicit Biases?,” “Confronting the Backlash against Implicit Bias,” “Do You Implicitly Prefer Markets or Regulation?,” “Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,”  “Implicit Bias and Strawmen.”and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

The Situation of Litigators

Situationist Contributor Jerry Kang, Nilanjana Dasgupta, Kumar Yogeeswaran, and Gary Blasi, recently posted their terrific new paper “Are Ideal Litigators White? Measuring the Myth of Colorblindness” on SSRN.  Here’s the abstract.

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This study examined whether explicit and implicit biases in favor of Whites and against Asian Americans would alter mock jurors’ evaluation of a litigator’s deposition. We found evidence of both explicit bias as measured by self-reports, and implicit bias as measured by two Implicit Association Tests. In particular, explicit stereotypes that the ideal litigator was White predicted worse evaluation of the Asian American litigator (outgroup derogation); by contrast, implicit stereotypes predicted preferential evaluation of the White litigator (ingroup favoritism). In sum, participants were not colorblind, at least implicitly, towards even a “model minority,” and these biases produced racial discrimination. This study provides further evidence of the predictive and ecological validity of the Implicit Association Test.

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To download the paper for free, click here. To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

Take the Policy IAT

If you haven’t already (or even if you have), we invite you to take, the “Policy IAT.”  We urge  individuals of all political and ideological orientations to participate in the on-line test designed to examine whether and to what extent people have implicit preferences for certain types of policy options.  Please encourage your friends (and, to those of you who are bloggers, your readers) to participate as well.

To learn more or to take the Policy IAT (a roughly 15-minute task), click here.

MSNBC Report on Implicit Associations

Here’s a ten-minute MSNBC segment on IAT test, in which Tony Greenwald attempts to shed light on the test results of two commentators on MSNBC’s Morning Meeting.

Vodpod videos no longer available.

To read a sample of related Situationist posts, see “Mispredicting Our Reactions to Racism,” “Banaji & Greenwald on Edge – Part IV,” “Mahzarin Banaji’s Situation,” “The Situation of  Situationist – Mahzarin Banaji.”

To review the full collextion of previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin or, for a list of such posts, click here. Go to Project Implicit to take the IAT discussed in this report here.  Take the Policy IAT here.

Policy IAT Launched

The Project on Law and Mind Science recently launched a policy-oriented implicit association test (IAT).

The IAT is an experimental method designed to measure associative information that people are either unwilling or unable to report. The test was first published by Greenwald and colleagues in 1998. The IAT builds on the implicit-explicit distinction in memory. It reflects the observation that because much social cognition occur in an implicit mode, measuring unconscious cognition likely provides the “missing ingredient” necessary to support efficient testing and development of psychoanalytic, behaviorist, and cognitive theories.

Development & Status of the Implicit Association Test

PRE-IMPLICIT ASSOCIATION TEST RESEARCH: 1990 – 1997

In the early 1990s, Greenwald and Situationist contributor Mahzarin Banaji, in collaboration with others, co-authored a number of papers that explored the unconscious operation of stereotyped beliefs, prejudicial attitudes and discriminatory behavior in the context of social groups, personal judgment, and gender. The authors also investigated automatic stereotyping and implicit social cognition generally. Greenwald proposed in a 1990 article that robust attitude effects can be easily discovered when attitude is involved only indirectly. In 1993, Banaji and others refined Greenwald’s 1990 proposal, arguing that stereotype information is influential only when the social category of the target makes the information relevant to judgment. For example, whereas priming individuals with stereotypes of aggression influences judgments about men, it has little influence on judgment about women. Alternatively, judgments about women are influenced when individuals are primed with stereotypes for dependence. In that 1993 article, Banaji and her co-authors also argued that an individual’s social category influences use of primed stereotype information.

BIRTH OF THE IMPLICIT ASSOCIATION TEST: 1998

Greenwald, McGhee, and Schwarz first published the IAT in 1988. Since then, “the IAT has been used repeatedly to measure implicit attitudes and other automatic associations.” IAT subjects sort stimuli representing four categories using two responses: usually keys on a computer keyboard. Each response is assigned to two of the four categories. The test rests on the assumption that participants will sort stimuli faster where they experience paired categories as more closely associated.

In their 1998 paper, Greenwald and colleagues presented three experiments that showed that when highly associative categories (e.g. flower + pleasant) share a response key, performance on the test is faster than when less highly associated categories share the same key. In the first experiment, subjects were asked to sort stimuli for flowers, musical instruments, insects, and weapons. This experiment tested the hypothesis that associations can be revealed by mapping two discrimination tasks alternately onto a single pair of responses. The results confirmed this assumption– superior performance was observed when associatively compatible categories were mapped onto the same response. The second experiment extended the test to a domain more typically attitudinal than the first experiment: using the test to discriminate differences between Japanese Americans and Korean Americans in their evaluative associations toward Japanese and Korean ethnic groups. The researchers hypothesized that ethnically Korean subjects would find it more difficult to perform the Japanese + pleasant than the Korean + pleasant combination and vice versa. This hypothesis was based on the history of Japanese-Korean antagonism. The results of the IAT confirmed the expected pattern. The third experiment combined the tasks of classifying Black and White names and discriminating pleasant versus unpleasant word. Twenty-six White American students participated in this test. At the end of the test, each subject responded to questionnaire measures for race-related attitudes and beliefs. The results of the third experiment “clearly revealed patterns consistent with the expectation that White subjects would display an implicit attitude difference between the Black and White racial categories. More specifically, the data indicated an implicit attitudinal preference for White over Black, manifest as faster responses for the White + pleasant combination than for the Black + pleasant combination.”

Since its initial publication in 1988, the IAT has been applied in a diverse array of disciplines including social and cognitive psychology, clinical psychology, developmental psychology, neuroscience, market research, health policy, business and consumer research, and law.

Policy Application for the Implicit Association Test

Although since its initial publication in 1988, the IAT has been applied in a diverse array of disciplines, application to the legal and policy arenas has been minimal. This is the case even though the dominant schemas that shape law and policy are not unlike attitudes, stereotypes and other forms of implicit cognition that IAT is so often harnessed to measure. In a series of articles, Situationist contributor Jon Hanson and his collaborators have endeavored to identify the dominant knowledge structures, schemas, and categories that shape law and policy. Based on their research, the most influential policy scripts boil down to a very simple two-part proposition:  “markets are good, regulation is bad.”  It seems likely that the IAT can shed light on this dominant policy script.

Hanson and Situationist fellow Mark Yeboah have developed an IAT-based study to investigate the the presence and strength of policy scripts across the ideological spectrum. The experiment hopes to shed light on a number of questions, including the extent to which implicit associations correspond with explicit attitudes about markets and regulation and how those associations might vary across various ideological and political dimensions.

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To participate in the Policy IAT, click here.

To read a fascinating interview of professors Banaji and Greenwald about the history and significance of the IAT, go to the five-part series: Part I is here; Part II is here; Part III is here; Part IV is here; and Part V is here.

To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.